op. Consol. Court No. 12-00007,Slip Baroque Timber ...enforcement.trade.gov/remands/14-35.pdf00007,...

A-570-970Remand RedeterminationP01: 4/01/10 — 9/30/10Public DocumentE&C/IV: BF/EK

Baroque Timber Industries (Zhongshan) Company, Limited, et a!. v. United StatesConsol. Court No. 12-00007, Slip op. 14-35 (March 31, 2014)

FINAL RESULTS OF REDETERMINATIONPURSUANT TO COURT ORDER

I. SUMMARY

The U.S. Department of Commerce (the “Department”) prepared these final results of

redetermination pursuant to the remand order of the U.S. Court of International Trade (“the

CIT”) in Baroque Timber II.’ This litigation pertains to certain issues in the investigation of

multilayered wood flooring (“MLWF”) from the People’s Republic of China (“PRC”).2 Baroque

Timber Industries (Zhongshan) Co., Ltd., Riverside Plywood Corporation, Samling Elegant

Living Trading (Labuan) Limited, Samling Global USA, Inc., Samling Riverside Co., Ltd., and

Suzhou Times Flooring Co., Ltd. (collectively, “Samling”), Zhejiang Layo Wood Industry Co.,

Ltd. (“Layo Wood”), and Zhejiang Yuhua Timber Co., Ltd. (“Yuhua”) are the mandatory

respondents. The plaintiffs in this action include the separate rate respondents Fine Furniture

(Shanghai) Limited (“Fine Furniture”); Changzhou Hawd Flooring Co. (“Changzhou Hawd”),

Ltd.; Dunhua City Jisen Wood Industry Co., Ltd. (“Jisen Wood”); Dunhua City Dexin Wood

Industry Co., Ltd. (“Dexin Wood”); Dalian Huilong Wooden Products Co. (“Huilong”);

Kunshan Yingyi-Nature Wood Industry Co., Ltd. (“Yingyi-Nature”); Armstrong Wood Products

‘See Baroque Timber Industries (Zhongshan) Company, Limited, et al. v. United States, Consol. Court No. 12-00007, Slip Op. 14-35 (March 31, 2014) (“Baroque Timber Ii”).2 Multilayered Wood Flooring From the People’s Republic ofChina: Final Determination ofSales at Less ThanFair Value, 76 FR 64318 (October 18, 2011) (“Final Determination”), as amended by Multilayered Wood FlooringFrom the People’s Republic ofChina: Amended Final Determination ofSales at Less Than Fair Value andAntidumping Duty Order, 76 FR 76690 (December 8, 2011) (“Amended Final Determination”).

(Kunshan) Co., Ltd. (“Armstrong”); and Karly Wood Product Limited (“Karly Wood”)

(hereafter “separate rate respondents” or “separate rate plaintiffs”).

The CIT remanded to the Department the 6.41 percent rate assigned to the separate rate

respondents. The CIT stated that this 6.41 percent rate was not reasonable because the

Department had not articulated a rational connection between the record evidence and the 6.41

percent rate applied to the separate rate respondents, nor has the Department explained how its

determination bears a relationship to the “economic reality”3of the litigating separate rate

respondents. The CIT held that while the simple-average methodology was not per se

unreasonable, it was not supported by substantial evidence, stating that the Department did not

consider whether the use of an adverse facts available (“AFA”) rate was merited in its separate

rates calculation4and that the Department did not connect the transaction-specific margin of

25.62 percent and the separate rate respondents’ pricing practices.5

Also, the CIT disagreed with the Department’s interpretation ofBestpak6and found that

Bestpak required the separate rate to “bear some relationship to respondents’ economic reality

and factual situation.”7

II. REMANDED ISSUE

Margin Calculated/Assigned for the Separate Rate Respondents

A. Background

In the first remand,8the Department assigned the separate rate respondents a 6.41 percent

rate, which was derived from a simple average of the 25.62 percent PRC-wide entity and the zero

See Baroque Timber fIat 25.41d. at 19.51d. at2l.6See Yangzhou Bestpak GUIs & Crafts Co., Ltd. v. United States, 716 F.3d 1370, 1380 (Fed. Cir. 2013) (“Bestpak”).

Baroque Timber Remand II at 25.8 Final Result of Redetermination Pursuant to Court Order, dated November 14, 2013.

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percent weighted-average calculated rates for each of the three mandatory respondents (Layo

Wood, Samling, and Yuhua), pursuant to section 735(c)(5)(B) of the Tariff Act of 1930, as

amended (the “Act”). However, the CIT determined that while the simple average methodology

was not per se unreasonable, the 6.41 percent rate assigned to the separate rate respondents was

not supported by substantial evidence.

B. Analysis

Under section 735(c)(5)(A) of the Act, the dumping margin for separate rate respondents

is normally “an amount equal to the weighted average of the estimated weighted average

dumping margins established for exporters and producers individually investigated, excluding

any zero and de minimis margins, and any margins determined entirely {on the basis of AFA}.”

However, when, as in this investigation, the dumping margins established for all individually

investigated respondents are zero, de minimis, or based entirely on AFA, section 735(c)(5)(B) of

the Act permits the Department to “use any reasonable method to establish the estimated all-

others rate for exporters and producers not individually investigated, including averaging the

estimated weighted average dumping margins determined for the exporters and producers

individually investigated.”

To determine a reasonable method to establish the plaintiffs’ separate rate, the

Department first reexamined the dumping margins of the exporters/producers that were

individually investigated (i.e., Samling, Layo Wood, and Yuhua). In this investigation, the

mandatory respondents provided satisfactory and timely information in response to the

Department’s requests for information and cooperated by acting to the best of their ability to

comply with these requests. Based on the information provided, the Department calculated a

zero percent margin for Yuhua in the Final Determination, and zero percent margins for Layo

Wood and Samling in the first remand redetermination. Conversely, 110 companies did not

respond to the Department’s quantity and value questionnaire.9Therefore, the Department

determined that there were exporters/producers of the subject merchandise during the period of

investigation that did not respond to the Department’s request for information.’0 For this reason,

the Department determined that these 110 companies withheld information that was requested,

significantly impeded the proceeding, and denied the Department the opportunity to choose these

companies as mandatory respondents, ask supplemental questions, or conduct verification of

responses.”

By refusing to respond to the Department’s quantity and value questionnaire, the 110

non-cooperating companies left the record void of the data necessary not only to calculate an

accurate dumping margin for them, but also to allow the Department to choose them as

mandatory respondents. It is, nevertheless, reasonable to infer that these companies’ dumping

margins during the period of investigation were not zero or de minimis, and that, if the

Department had received complete information, the Department may have chosen one of these

companies as a mandatory respondent.12 The Department reasonably infers that an

uncooperative respondent would have cooperated if it could have obtained such a low rate.13

Multilayered Wood Flooringfrom the People’s Republic ofChina: Preliminary Determination ofSales atLess Than Fair Value, 76 FR 30656 (May 26, 2011) (“Preliminary Determination”).‘° Multilayered Wood Flooringfrom the People’s Republic ofChina: Final Determination ofSales at LessThan Fair Value, 76 FR 64318 (Oct. 18, 2011) (“Final Determination”).“Id.12 See Baroque Timber II at 20 (stating that “Commerce may draw reasonable inferences from the failure ofuncooperative respondents to provide evidence of the size, quantity, and value of their sales...”).

Changzhou Wujin Fine Chemical Factory Co., Ltd. v. United States, Slip Op. 13-127 (Ct. Int’l Trade Oct. 2,2013) (affirming the Department’s finding that the separate rate companies had above de minimis rates withoutassigning an exact antidumping duty rate); see, e.g., Laminated Woven Sacks From the People’s Republic ofChina:Final Results ofFirst Antidumping Duly Administrative Review, 76 FR 14906, 14910 (March 18, 2011) (citingRhone Poulenc. Inc. v. United States, 899 F.2d 1185, 1190-91 (Fed. Cir. 1990) (“Rhone Poulenc”) and Ta ChenStainless Steel Pipe. Inc. v. United States, 24 CIT 841, 848 (Ct. Int’l Trade 2000)); Fresh Garlicfrom the People’sRepublic ofChina: Final Results and Partial Rescission ofthe 14th Antidumping Duly Administrative Review, 75FR 34976, 34979 (June 21, 2010).

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Similarly, the Court of Appeals for the Federal Circuit (CAFC) has held that it can be presumed

that a respondent will make a knowing and rational decision whether to respond to the

Department’s questionnaires, based on which choice will result in the lower rate.14 In this

investigation, it is clear from the information on the record that these companies refused to

participate when they did not respond to our quantity and value questionnaires.’5Accordingly,

the Department can infer that these 110 companies made knowing and rational decisions that

they were not capable of obtaining a lower rate (i.e., a zero or de minimis rate). Therefore, it is

reasonable to conclude from the record evidence that these companies’ actual dumping margins

during the period of investigation were not zero or de minimis and, had they chosen to

participate, the Department would have had the opportunity to choose one as a mandatory

respondent and would have calculated a dumping margin above de minimis in the Final

Determination.16

Based on the above reexamination of the dumping margins of the exporters/producers

under investigation, the Department selected a reasonable method to establish the separate rate

plaintiffs’ separate rate. As indicated above, the Department determines that it may infer that the

actual dumping margins of the individually investigated respondents would not have been all

14 See Rhone Poulenc, 899 F.2d at 1190-91; Ta Chen Stainless Steel Pipe. Inc. v. United States, 298 F.3d 1330, 1339(Fed. Cir. 2002) (“Ta Chen”); KYD. Inc. v. United States, 607 F.3d 760, 766-67 (Fed. Cir. 2010) (“KYD”); see alsoTianiin Mach. Imp. & Exp. Corp, v. United Slates, 752 F. Supp. 2d 1336, 1348 (Ct. Int’l Trade 2011) (“TianjinMach.”) (stating that Rhone Poulenc “stands for the proposition that a respondent can be assumed to make a rationaldecision to either respond or not respond to {the Department’s) questionnaires, based on which choice will result ina lower rate”); Mueller Comercial de Mexico. S. de R.L. de C. V. v. United States, 807 F. Supp. 2d 1361, 1367 (Ct.Int’l Trade 2011) (stating that the proposition expressed in Rhone Poulenc “that an uncooperative respondentreceives the highest rate by choice, based on an understanding of its position, is carried forward in {KYD}”).15 See Preliminary Determination at 30662 (where the Department stated that certain companies did not respond toour questionnaire requesting Q&V information).

Changzhou Wujin Fine Chemical Factory Co., Ltd., Slip Op. 13-127 at 11 (affirming the Department’sfinding that the separate rate companies had above de minimis rates without assigning an exact antidumping dutyrate).

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zero, de minimis, or based entirely on AFA, if the 110 companies had cooperated.’7 Therefore,

the Department determined that a reasonable method of establishing the separate rate plaintiffs’

separate rate for the period of investigation is to apply the separate rate calculation methodology

preferred in the statute, as provided in section 73 5(c)(5)(A) of the Act. As noted above, this

provision directs the Department to establish a separate rate of “an amount equal to the weighted

average of the estimated weighted average dumping margins established for exporters and

producers individually investigated, excluding any zero and de minimis margins, and any

margins determined entirely {on the basis of AFA}.” Pursuant to section 73 5(c)(5)(A) of the

Act, when only one dumping margin for the individually investigated respondents is above de

minimis and not based on AFA, the separate rate will be equal to that single above de minimis

rate.’8 Accordingly, if the 110 companies had chosen to cooperate, the examined company’s rate

would have been above de minimis rate and would have been assigned to the separate rate

plaintiffs as a separate rate in the Final Determination. Therefore, the Department determined

that it is reasonable to conclude that the separate rate plaintiffs’ separate rate for the period of

investigation was above de minimis.19

This approach excludes any inferences based on AFA, but rather is based on a reasonable

inference that the 110 companies’ lack of cooperation indicates that they would have been

assigned antidumping duties higher than de minimis.20

17 Baroque Timber II at 20 (stating “Commerce may draw reasonable inferences from the failure ofuncooperative respondents to provide evidence of the size, quantity, and value of their sales”).18See Longkou Haimeng Mach. Co. v. United States, 581 F. Supp. 2d 1344, 1357-60 (Ct. Int’l Trade 2008)(affirming the Department’s determination to assign a 4.22 percent dumping margin to the separate rate respondentsin a segment where the three mandatory respondents received dumping margins of 4.22 percent, 0.03 percent, andzero percent, respectively); Certain Kitchen Appliance Shelving and Racks From the People’s Republic ofChina:Final Determination ofSales at Less Than Fair Value, 74 FR 36656, 36660 (July 24, 2009).195ee e.g., Changzhou Wujin Fine Chemical Factory Co., Ltd., Slip Op. 13-127 at 11.20j at8.

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Furthermore, in the first administrative review of this antidumping duty order, the

Department individually investigated four companies, including two of the separate rate

plaintiffs.21 While the discipline of an antidumping duty order often results in lower or no

margins in the first administrative review as companies may change their pricing practices to

eliminate the price discrimination found in the period of investigation (“P01”), in this case the

Department preliminarily found continued dumping in the first review results.22

Therefore, the Department reasonably infers that it would have found dumping during the

period of investigation, prior to the imposition of the antidumping duty order. This confirms that

our treatment of the plaintiffs bears a relationship to their economic reality. This complies with

the Court’s opinion by tying the plaintiffs’ economic reality and factual situation to the results of

this remand redetermination.23

While it is normally necessary to assign a specific rate to separate rate respondents, the

Department determined that, in this instance, it would be an unnecessary use of administrative

and judicial resources to proceed with the additional resource-intensive investigation and

calculations needed to further specify seven out of eight companies’ separate rates. Indeed, the

rate determined in the first administrative review supersedes the cash deposit rate established in

the final determination of the investigation.24 Also, any rates resulting from this litigation would

not be used for liquidation purposes for seven of the separate rate plaintiffs.25 Rather, these

seven separate rate plaintiffs’ liquidation rates will be based on the assessment rates determined

21 Multilayered Wood Flooringfrom the People’s Republic ofChina: Preliminary Results ofAntidumping DutyAdministrative Review, 78 FR 70267 (Nov. 25, 2013).22 Id. Fine Furniture, Layo Wood, and Armstrong all had rates above de minimis in the Preliminary Results: 0.67,8.87, and 8.85 respectively. Subsequently, Layo Wood has been excluded from the antidumping duty order becauseof the results of the first remand redetermination in this case. See Dkt. No. 32, Case No. 12-00013.23 See Baroque Timber II at 4.24 See section 751 (a)(2)(C) of the Act.25 Id.

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from the first administrative review or a previously determined provisional measures cap rate.26

The Department finds that notwithstanding this litigation, the provisional measures cap

established in section 737(a) of the Act does not change. As explained in more detail below in

Comment 1, the provisional measures cap is established by the amount of security collected

during the provisional measures period and the amount of the cap is not revisited if the

Department makes methodological changes as a result of a redetermination.

Given that any further precision in determining seven of the eight plaintiffs’ above de

minimis separate rate would be inconsequential, it would be imprudent to proceed, in the absence

of the necessary information, with the resource-intensive calculations required to further specify

their separate rate.27 Expending a considerable amount of the Department’s limited

administrative resources, as well as the CIT’s judicial resources, in order to establish a precise

dumping rate that would never be applicable would be a wasteful and futile exercise. Where

possible and proper, the court has endeavored “to avoid such a waste of administrative and

judicial resources.”28 Moreover, given the limited information currently on the record and that

establishing a precise rate for these seven companies would require the Department to collect and

verify further information, the Department will avoid wasting its own resources, as well as their

resources, if it determines to refrain from calculating a more precise rate.29

For the one respondent not included in the first administrative review, Changzhou Hawd,

which certified that it had no shipments of subject merchandise to the United States during the

27 Changzhou Wujin Fine Chemical Factory Co., Ltd. v. United States, Slip Op. 13-127 (Ct. Int’l Trade Oct. 2,2013) (affirming the Department’s finding that the separate rate companies had above de minimis rates withoutassigning an exact antidumping duty rate).285ee Union Camp Corp. v. United States, 53 F. Supp. 2d 1310, 1325 (Ct. Int’l Trade 1999) (citing Timken Co. V.

United States, I F. Supp. 2d 1390, 1393 (Ct. Int’l Trade 1998) (setting aside a remand order where furtherinvestigation would “unnecessarily expend limited administrative resources”)).295ee Changzhou Wujin, Slip Op. 13-127 at 11.

8

review period, we intend to issue a full questionnaire and conduct a full investigation to provide

the company with its own calculated rate.3° Because Changzhou Hawd is not part of the first

administrative review, its cash deposit rate will not be replaced by rates determined in the first

administrative review.31 Also, with the very limited information currently on the record, the

Department is unable to calculate a dumping rate based on Changzhou Hawd’s own economic

reality because the record only contains aggregate quantity and value data and Changzhou

Hawd’s separate rate application.32 These limited data do not allow the Department to make any

determinations on Changzhou Hawd’s “economic reality,” as ordered by the Court. Therefore,

the Department needs to conduct a full investigation, including questionnaires, any supplemental

questionnaires, and verification as required by the statute.33

III. SUMMARY AND ANALYSIS OF LITIGANTS’ COMMENTS

We received comments from interested parties regarding the separate rate companies’

margin calculation. These comments are addressed, below. After considering all parties’

comments, we have made minor changes to our Draft Redetermination in this final

redetermination, including clarifying that the provisional measures deposit cap rate in effect was

not affected by this litigation.

1. Separate Rate Methodology

Petitioner Comments:

Submission of Changzhou Hawd, “Multilayered Wood Flooring from the People’s Republic of China: NoSales Certification,” dated March 28, 2013. The Department confirmed with U.S. Customs and Border Protectionthat Changzhou Hawd did not have any shipments of subject merchandise to the United States during the firstadministrative period of review. See Multilayered Wood Flooring From the People’s Republic ofChina:Preliminary Results ofAntidumping Duty Administrative Review; 2011—2012, 79 FR 70267, 70268 (November 25,2013).H See 19 CFR 351.213(d)(3).32 In Changzhou Hawd’s separate rate application, which was submitted on January 18, 2011, it submitted verylimited commercial data from which a margin could be derived as well as information responding to theDepartment’s questions to establish whether it was defacto and dejure independent from the People’s Republic ofChina government.

See section 782(i) of the Act; 19 CFR 351.307(b)(i).

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The Coalition for American Hardwood Parity (“CAHP”), petitioner in the underlying

investigation, concurs with the Department’s draft remand results, and states that the results

adhere to the CIT’s direction to articulate a rational connection between “economic reality” and

the rate applied to the litigating separate rate respondents.34 CAHP states that the Department

employed a reasonable methodology to assign a separate rate because it accounts for the three de

minimis recipients while acknowledging that there are 110 companies of indeterminate size that

are presumed to have engaged in dumping, and which were duly assigned an AFA rate.35 CAHP

asserts that the methodology used initially by the Department to calculate a separate-rate margin

was in accordance with the methodology affirmed by the Federal Circuit in Bestpak, which

stated that a separate-rate margin could reflect both de minimis and AFA rates.36 CAHP notes

that the underlying purpose of the application of AFA is to “ensure that a party does not obtain a

more favorable result by failing to cooperate than if it had cooperated fully.”37 CAHP argues

that ignoring this fact would undermine the Department’s ability to calculate dumping margins

as accurately as possible.38 CAHP’s position regarding the Department’s initial separate-rate

calculation notwithstanding, CARP accedes to the Department’s position that, at this point in the

litigation, the calculation of a more specific margin than that put forth in the draft would require

Letter from CAHP, “Multilayered Wood Flooring from the People’s Republic of China: Comments on DraftResults of Redetermination Pursuant to Court Order,” dated May 5, 2014, (“CARP May 5, 2014, RemandComments”), at 2, citing Draft Results of Redetermination Pursuant to Court Order: Baroque Timber Industries(Zhongshan) Company, Limited et. a! v. United States, Consol. Court No. 12-00007, Slip-Op. 14-35 (“DraftResults”) (April 29, 2014); see also Letter from CARP, “Multilayered Wood Flooring from the People’s Republic ofChina: Comments on Draft Results of Redetermination Pursuant to Court Order,” dated May 12, 2014, (“CAHPMay 12, 2014, Remand Comments”).355ee CAHP May 5, 2014, Remand Comments at 2 and 6.361d at 3, citing Yangzhou Bestpak Gfls & Crafts Co. Ltd. v. United States, _F.3d._, Slip Op, 2013-1312 (Fed.Cir.,May 20, 201 3)(”Bestpak”) at 13 (“... 1673 d(c)(5)(B) and the SAA explicitly allow Commerce to factor both deminimis and AFA rates into the {separate-rate} calculation methodology.”) CAHP argues that while the BestpakCourt found that the Department’s methodology was unreasonable in light of the unique facts presented in that case,the facts in the instant proceeding are significantly different because the AFA rate in the instant proceeding isderived from an actual commercial transaction rather than a corroborated petition rate.

Id. at 6, citing Branco Peres Citrus, S.A. v. United States, 25 CIT 1179, 1184 (2001).38 Id., citing Bestpak at 15 (citing to Rhone Poulnec, Inc. v. United States, 899 F.2d 1185, 1191 (Fed.Cir. 1990).

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an undue and unnecessary expenditure of resources, as the separate-rate in the final results of the

first administrative review would supersede the rate determined in the underlying investigation

for those litigants that were not specifically examined in the first review.39

CAHP rebuts Armstrong’s contention that the only difference between the separate rate

respondents and the mandatory respondents is that the Department sampled the mandatory

respondents for individual investigation and did not sample the other separate rate respondents.4°

CAHP notes that the mandatory respondents submitted complete and detailed questionnaire

responses which were subject to review by both the Department and other parties, including

CAHP, as well as several rounds of deficiency questionnaires and verification by the

Department. In contrast, the separate rate respondents only submitted a separate rate application.

CAHP contends that Armstrong’s reliance on its de minimis rate in the final results of the

first administrative review of this order as evidence that Armstrong did not dump in the

investigation is not dispositive or even probative. As the Department noted in the Draft Results,

the discipline of the antidumping order often results in lower or no margins in the first

administrative review as companies may change their pricing practices to eliminate the price

discrimination found in the period of investigation.

CAHP disagrees with Armstrong and Fine Furniture’s reference to the CIT’s decision in

Albemarle Corp. v. United States4’as supportive of their position of assigning them a zero rate.

CAHP contends that a central point in the Albemarle proceeding involved the relevance of

margins assigned in a prior administrative review to the third review subject to the court appeal.

39See Id. at4.° See CAHP May 12, 2014, Remand Comments at 4.41 See Albemarle Corp. v. United States, Consol. Court No. 11-00451, Slip Op. 13-106 (“Albemarle”) (Ct. Int’lTrade Aug. 15, 2013), Final Results of Redetermination Pursuant to Court Remand (January 10, 2014), ECF No. 96at 13.

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In the instant case, CAHP argues that the contemporaneity of data or prices is not in dispute

since all data used in the calculation of rates was based on data in the same time period (i.e.,

P01).

Changzhou Hawd, Jisen Wood, Dexin Wood. Huilong, Yingyi-Nature, and Karly WoodComments:

Changzhou Hawd, Jisen Wood, Dexin Wood, Huilong, Yingyi-Nature, and Karly Wood

argue that the calculation of the separate rate respondents’ rate is not moot due to the rate

obtained in the final results of the first administrative review because provisional measures serve

as a cap on liability during the period in which they are in effect.42 Therefore, they contend that

the Department must calculate a specific separate rate for both the investigation and first

administrative review for the separate rate respondents so that the Department knows which rate

to apply as the cap when issuing liquidation instructions for the entries in the first administrative

review, pursuant to 19 CFR 351.212(d). Changzhou Hawd, Jisen Wood, Dexin Wood, Huilong,

Yingyi-Nature and Karly Wood also note that because the amended preliminary determination

rate was based on an average of the AFA rate and the calculated zero or de minimis rates of the

mandatory respondents, a methodology the CIT held was unreasonable, the Department should

calculate both the amended preliminary determination and final determination rates in

accordance with the law because both of these rates will be used as deposit cap rates.

In addition, Changzhou Hawd, Jisen Wood, Dexin Wood, Huilong, Yingyi-Nature, and

Karly Wood state that it is not reasonable for the Department to assign a separate rate above de

minimis when all individually reviewed companies’ rates were de minimis because the

appropriate method for calculating the rates for cooperating non-mandatory respondents is to use

42 See Letter from Changzhou Hawd, Jisen Wood, Dexin Wood, Huilong, Yingyi-Nature and Karly Wood,“Multilayered Wood Flooring from the People’s Republic of China: Response to Department’s Request forComments,” dated May 2, 2014, at 4.

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the weighted average rates of individually investigated companies. They argue that the

Department erred in assigning the cooperating non-mandatory respondents the PRC-wide rate

and failed to make a credible link between the adverse rate assigned to the PRC-wide entity and

the cooperating separate rate respondents. They also contend that it is unreasonable to consider

rates in the final results of the first review to justif’ the rate assigned in the draft second remand

because each segment stands alone, resting on the unique facts, laws and policies.


further argue that in Bestpak,43 the CAFC rejected the use of an AFA rate derived from a

cooperating de minimis mandatory respondent as part of the calculation of the separate rate.

They state that it was very significant to the Bestpak Court that a single very high rate was not

deemed representative of the separate rate candidate’s trading activity. There, like here, the

Department’s “all others” separate rate assignment was “untethered” to the three respondents’

actual dumping margins and falls short of amounting to substantial evidence. They claim that

it is not reasonable to conclude that the costs and sales practices of the state-controlled PRC

wide entity should be similar to private companies’ dumping margins. Therefore, they argue that

the Department should apply a rate coming from a neutral inference, which is a mid-point

weighted-average de minimis margin of the mandatory respondents. In the past, the Department

has relied on zero or de minimis rates in the calculation of the separate rate.45

See Yangzhou Bestpak G/is & Crafts Co., Ltd. v. United States, 716 F.3d 1370 (Fed. Cir. 2013) (“Bestpak”).See Letter from Changzhou Hawd, Jisen Wood, Dexin Wood, Huilong, Yingyi-Nature and Karly Wood,

“Multilayered Wood Flooring from the People’s Republic of China: Response to Department’s Request forComments,” dated May 2, 2014, at 11.45See, e.g., Brake Rotors From the People’s Republic ofChina: Final Results of2006-2007 Administrative and NewShipper Reviews and Partial Rescission of2006-2007 Administrative Review, 73 FR 32678 (June 10, 2008) andaccompanying Issues and Decision Memorandum at Comment 1; Diamond Sawblades and Parts Thereoffrom thePeople’s Republic ofChina: Amended Final Results ofAntidumping Duty Administrative Review: 2010-2011, 78 FR42930 (July 18, 2013) and accompanying Decision Memorandum; Honeyfrom Argentina: Final Results ofAntidumping Duty Review, 70 FR 19926 (April 15, 2005), Amanda Foods (Vietnam) Ltd. v. United States, Slip Op.

13


contend that the Changzhou Wujin court was facing a different situation than in the instant case

because: 1) all entries prior to the U.S. International Trade Commission’s decision would have

been liquidated without regard to antidumping duties, while in the instant case, none of the

entries have been liquidated; and 2) there was only one cooperating mandatory respondent, rather

than three in the instant case.


conclude that the Department should apply a de minimis rate to the separate rate respondents and

exclude them from the antidumping duty order.

Fine Furniture Comments:

Fine Furniture argues that the Department’s Draft Redetermination is not supported by

the facts of the case, and that the Department has still not provided a rational connection between

the rate assigned to the separate rate companies and those companies’ economic reality. Fine

Furniture asserts that the Department has made presumptions about the 110 companies that did

not submit Q&V responses, and that these presumptions neither qualif’ as evidence, nor

demonstrate that the assigned separate rate bears any relationship to the separate rate companies’

economic reality. Fine Furniture states that the Department presumed that these 110

uncooperative Q&V respondents would have had above-de minimis margins if they had

participated, and that at least one of these 110 unresponsive companies would have been large

enough to have been selected as a mandatory respondent and had its margin form part of the

separate rate calculation. Fine Furniture claims that the Department’s use of these 110

uncooperative respondents’ rates does not comport with the statute’s envisioned method of

2011-39 (Ct. Int’l Trade April 14, 2011) (“Amanda 2011”), Amanda Foods (Vietnam) Ltd v. United States, 35 CIT—, 714 F. Supp. 2d 1282, 1291-92 (Ct. Int’l Trade 2010) (“Amanda 2010”).

14

determining a separate rate by averaging the estimated weighted average dumping margins

determined for exporters and producers individually examined. Fine Furniture contends that

although the Department stated that it was not applying an adverse presumption to the

cooperating parties, it did not appear to consider the more likely explanation that the non-

responding companies did not export subject merchandise.

Fine Furniture also argues that the Department may not lawfi.illy make assumptions about

the investigation separate rate by looking at the results of the first review, noting that

antidumping rates change from one period to another. Fine Furniture notes that the Department

found an above-de minimis margin for Layo Wood in the first review, but that it will still exclude

Layo Wood from the order based on the first redetermination of the remanded investigation.

Fine Furniture states that the Department’s treatment of Layo Wood demonstrates the lack of a

relationship between the investigation and the administrative review.

Fine Furniture asserts that the Department’s separate rate methodology in the Draft

Redetermination is not supported by case law or precedent. Fine Furniture states that Changzhou

Wujin46 is distinguished from the present case for the following reasons: (1) in Changzhou

Wujin, one mandatory respondent received a de minimis margin and the other mandatory

respondent received an AFA margin, while in the present case, all three mandatory respondents

received de minimis margins; (2) in Changzhou Wujin, no separate rate company submitted full

questionnaire responses, while in the present case, Fine Furniture did; and (3) in Changzhou

Wujin, the entries for which a rate was to be calculated had already been liquidated, while in the

present case, they have not yet been liquidated. Further, Fine Furniture states that in Changzhou

Wujin, the CIT said that other alternatives existed (such as calculating a specific rate for the

46 Changzhou Wujin Fine Chem. Factoiy Co. v. United States, 968 F. Supp. 2d 1294 (CIT 2014).

15

separate rate respondent), but that the Department gave a legitimate explanation for not

exercising the alternatives, while in the present case, the Department has other alternatives

available and must examine them before assigning Fine Furniture a fictitious rate that bears no

relationship to its economic reality.

Fine Furniture contends that the precedent in Bestpak requires the Department to

calculate a separate rate that bears some relation to actual dumping margins, and that the

Department’s assumption of an above-de minimis margin without record evidence specific to

Fine Furniture fails the Bestpak standard of establishing a relation to economic reality or

commercial activity. Additionally, Fine Furniture claims that the methodology used in the Draft

Redetermination is in direct conflict with the Department’s redetermination in Albemarle.47 Fine

Furniture notes that in that case, where the mandatory respondents had zero or de minimis

margins, the Department assigned the mandatory respondents’ de minimis margin to those

separate rate respondents that had never before been assigned their own individual rate. Fine

Furniture claims that the Department in the instant case completely reversed its course and

ignored the precedent set by Albemarle.

Fine Furniture asserts that the Department cannot “punt” its calculation of a separate rate

and, instead, simply report an amorphous “above-de minimis” margin.48 Fine Furniture argues

that the CIT has evaluated the reasonableness of various assigned separate rates by relative

numerical levels, and that the Department cannot skirt judicial review by masking the impact of

including adverse inferences in its separate rate determination.

47Albemarle Corp. v. United States, Consol. Court No. 11-00451. Fine Furniture cites Final Results ofRedetermination Pursuant to Court Remand, Albemarle Corp. v. United States, Consol. Court No. 11-00451, Slip

op. 13-106 (CIT Aug. 15, 2013) (Jan. 10, 2014), ECF No. 96.48See Letter from Fine Furniture, “Multilayered Wood Flooring from the People’s Republic of China: Comments ofFine Furniture (Shanghai) Limited on Draft Results of Redetermination Pursuant to Court Order (Consol. Ct. No.12-00007, Slip Op.l4-35),” dated May 2, 2014, at 12.

16

Fine Furniture additionally claims that the rates of the mandatory respondents are

reflective of the non-selected respondents and the industry as a whole, and that such a premise is

inherent in the separate rate methodology.49 It notes that the Department has calculated a

separate rate as an average of mandatory rates when all such rates were AFA, even though the

Act prefers that AFA be excluded from the calculation.5°Fine Furniture claims that the logical

presumption from the mandatory respondents having de minimis calculated rates is that the

industry as a whole would be de minimis if individually investigated. It claims that the actually

calculated de minimis rates are more probative of the experience of all other companies than the

speculative above-de minimis rates that may have been calculated for the uncooperative Q&V

respondents. It concludes that the only rates relevant to the calculation of Fine Furniture’s

separate rate are the mandatory respondents’ rates.

Armstrong Comments:

Annstrong Wood Products (Kunshan) Co., Ltd., and Armstrong World Industries

(collectively, “Armstrong”) argue that the Department’s separate rate calculation methodology is

not reasonable within the meaning of section 735(c)(5)(B) of the Act, does not reflect the

economic reality of Armstrong and the other separate-rate respondents, and is contrary to the

law.5’ According to Armstrong, the Department’s Draft Redetermination is based on a series of

unwarranted presumptions and inferences that fail to explain why its separate-rate methodology

was reasonably reflective of the separate-rate respondents’ “factual situation” or “economic

‘ Fine Furniture cites Amanda Foods (Vietnam) Ltd. v. United States, 647 F. Supp. 2d 1368, 1380 (CIT 2009) andNat’! Knitwear & Sportswear Ass ‘n v. United States, 779 F. Supp. 1364, 1373 (CIT 1991).50 Fine Furniture cites Notice ofFinal Determination ofSales at Less Than Fair Value: Certain Tissue PaperProductsfrom the People’s Republic ofChina, 70 FR 7475, 7478 (February 14, 2005).

See Letter from Armstrong, “Multilayered Wood Flooring from the People’s Republic of China (4/1/10-9/30/10):Comments on Draft Redetermination,” dated May 4, 2014, (“Armstrong Remand May 4 Comments”) at 1-2.

17

reality” as the Court directed.52 Armstrong states that the courts have observed that

presumptions may not serve as evidence,53 and that the “mere presence of non-cooperating

parties {does not justif’ the} choice of dumping margins assigned to cooperative uninvestigated

respondents.”54

Armstrong asserts that the Department’s draft methodology fails to use rates for

investigated companies as required by the Act.55 Armstrong states that section 735(c)(5)(B) of

the Act indicates a strong legislative preference for the use of rates determined for individually

investigated companies (i.e., the mandatory respondents), and that Department’s use of the “any

reasonable method” alternative should reflect this preference.56 Armstrong further states that the

Department’s past practice of assigning an AFA rate as the separate rate in cases where all

investigated companies received AFA rates, and applying zero rates where all investigated rates

were determined to be zero is consistent with this legislative preference.57 Armstrong argues that

the Department may not depart from this legislative preference without explanation.

Armstrong argues that the rates of the individually investigated mandatory respondents

are representative of the cooperative separate-rate respondents.58 Armstrong states that each of

these cooperative respondents filed timely quantity and value and separate rate responses, and

submitted themselves for consideration as mandatory respondents. Armstrong argues that the

52 Id. at 2-3, citing Baroque Timber Industries (Zhongshan) Company, Limited v. United States, Consol. Ct. No.12-00007, Slip Op. 14-35 (March 31, 2014) (“Baroque Timber Industries III”).

See Id., 2-3, citing Baroque Timber Industries III, at 21, n.32 (citing Routen v. W, 142 f.3D 1434, 1439 (Fed.Cir,1998)).54Id. at 3, citing Baroque Timber Industries III, at 20 (citing Amanda Foods (Vietnam) Ltd. v. United States, 647 F.Supp.2d 1368, 1381 (CIT 2009)).551d. at4.56 Id.571d. at 4 citing (Final Results of Redetermination Pursuant to Court Remand, Albemarle Corp. v. United States,Consol. Ct. No. 11-00451, Slip Op. 13-106 (Ct. Int’l Trade Aug. 15, 2013)(Jan 10, 2014); Maclean-Foggy. UnitedStates, 853 F. Supp.2d 1336, 1340 (Ct. Int’l Trade July 30, 2012)); and Amanda Foods (Vietnam) Ltd. v. UnitedStates, 647 F. Supp. 2d 1368, 1381 (Ct. Int’l Trade 2009) (“Amanda 2009”).58 See Id. at 5.

18

SM confirms that the Department’s mandatory respondent selection methodology is designed to

yield representative results, which the Department may not disregard now because a different

selection methodology may have produced different results.59 Armstrong further argues that the

separate-rate applicants are more similar to the cooperative mandatory respondents than the non

cooperative PRC-wide entity.6°

Annstrong disagrees with the Department’s argument that the preliminary results of the

first administrative review support the Department’s inference that if it had selected non-

cooperating companies for individual examination in the underlying investigation, it would have

found above de minimis margins.6’ Armstrong argues, however, that if it were permissible to

consider the results of the first administrative review in the context of the instant proceeding,

then the results would support assigning a zero rate to Armstrong because it received a zero rate

in the first review, and thus there is no evidence that Armstrong engaged in dumping.

Armstrong contends that the non-cooperative companies bear no reasonable relationship

to the separate rate respondents because the separate rate respondents are not part of the China-

wide entity.62 Armstrong argues that the foundation of the Department’s separate rate

mechanism is that separate rate respondents are determined to be separate from the non-market

economy-wide (“NME”) entity and that the degree of the NME-wide entity’s dumping has

nothing to do with the separate rate respondents’ margins.63 According to Armstrong,

establishing the separate rate respondents’ margins based on a presumption about the likely

Id., at 5, citing Statement ofAdministrative Action, 1994 U.S.C.C.A.N. 4040-4200-01 (“SAA”).Id., at 5-6.

61 Id., at6.62 Letter from Armstrong, “Multilayered Wood Flooring from the People’s Republic of China (4/1/10-9/30/10):Additional Comments on Draft Remand Redetermination,” dated May 12, 2014, (“Armstrong Remand May 12Comments”) at 2.63 See Id.

19

degree of the China-wide entity’s dumping, as the Department did in the Draft Redetermination,

thus would negate the very foundation of the Department’s separate rate mechanism.M

Armstrong contends that the circumstances in Changzhou Wujin are not the same as in

the instant investigation and do not support the Department’s Draft Redetermination.65 In

Changzhou Wujin, according to Armstrong, the court approved the Department’s above de

minimis margins for the separate rate respondents because: 1) one mandatory respondent

received a de minimis rate and one received an AFA rate, so the Department was left with little

pricing data to calculate a separate rate; and 2) it was unnecessary to calculate a separate rate

because the subject entries had already been liquidated.66 Neither circumstance is present in the

instant case, according to Armstrong.67 Also, in Changzhou Wujin, the two individually

investigated companies received a zero and an AFA rate and the Department determined that the

separate rate companies had margins above de minimis solely on such information. In the instant

case, all three individually investigated companies, which were selected by the Department as

being representative of the uninvestigated cooperative respondents, received zero margins and

the Department must accept the results of its investigation.68 In response to CAHP’ s contention

that basing the separate rate respondents’ rate solely upon the de minimis rates calculated for the

mandatory respondents would ignore the fact that there are 110 non-cooperating companies

which are presumed to be dumping, Armstrong argues that the failure of the 110 non-cooperating

companies to participate in the investigation is already reflected in the AFA margin assigned to

the China-wide entity in the final determination in the investigation.69 Finally, Armstrong

Mid.

651d., at3.66 Id.67 Id.68 Id.69Id., at4.

20

contends that Bestpak supports its position that the expected methodology under the “any

reasonable method” alternative is to calculate an average of mandatory respondents’ rates, which

are all zero in the instant case, and that it would not be reasonable to cherry-pick a single

transaction by a mandatory respondent that is above de minimis because dumping margins are

calculated on the basis of all sales in the investigated period.70

Lumber Liguidators Services, LLC (“Lumber Liciuidators”) Comments:

Lumber Liquidators contends that the Department’s refusal to recalculate a specific

separate rate is unlawful and unsupported by the administrative record.7’ According to Lumber

Liquidators, the Department presents a new argument in this Draft Redetermination, that

recalculating the margin for the separate rate respondents is futile, and is now precluded from

raising this new argument after the first remand from the Court.72 Lumber Liquidators asserts

that the separate rate respondents seek not only a fair recalculation of the separate rate but also

believe that this rate is de minimis and, accordingly, Commerce must exclude them from this

antidumping order.73 Lumber Liquidators maintains that by hiding behind the first

administrative review and neglecting to recalculate a specific separate rate, the Department short

circuits this process and fails to establish dumping margins as accurately as possible.74

According to Lumber Liquidators, the Department’s Draft Redetermination means that

individual separate rate companies receive different separate rates for the same period of

investigation, which is inconsistent with its separate rate methodology and is inherently unfair.75

° Id., at 5.‘ See Letter from Lumber Liquidators, “Draft Redetermination Comments Multilayered Wood Flooring from thePeople’s Republic of China,” dated May 5, 2014, (“Lumber Liquidators May 5 Remand Comments”) at 2.72 Id.

Id., at 3.74ShakeproofAssembly Components, Div. ofIll. Tool Works, Inc. v. United States, 268 F.3d 1376, 1382 (Fed. Cir.2001).

See Lumber Liquidators May 5 Remand Comments at 4.

21

Lumber Liquidators states that if in this second remand the Department still refuses to calculate

the separate rate to de minimis, at a minimum the separate rate respondents’ margin must be

capped at 3.31 percent during the provisional measures deposit cap period,76pursuant to 19 Usc

1673(0(a).

Lumber Liquidators maintains that the Department has not provided a reasonable

explanation for the use of an AFA rate in calculating the separate rate for cooperating companies

and fails to provide a rationale for how the use of an AFA rate results in a reasonably accurate

separate rate.77 According to Lumber Liquidators, the Department assumes that all chinese

companies are dumping; otherwise they would be responding to the Department’s Q&V

questionnaires.78 Lumber Liquidators argues that the Department has failed to consider that

these companies could have had any number of reasons for not responding.79 Further, Lumber

Liquidators contends that the Department’s argument appears to be based on the premise that a

separate rate can never be zero or de minimis, but the Department fails to cite to any controlling

precedent or legislative history to support this contention.8°

Lumber Liquidators also argues that the Department has improperly drawn adverse

inferences about the cooperating respondents in a situation where there was no need or

justification for deterrence.8’citing Changzhou Wujin, Lumber Liquidators states that the court

held that applying an adverse rate to cooperating respondents undercuts the cooperation-

76 Id., at 4 (where Lumber Liquidators contends that the provisional measures deposit cap period applies to entriesbetween the publication of the Department’s preliminary determination in the investigation and the U.S.International Trade Commission’s final determination. In this instant case, this period is May 26, 2011, to December7,2011).

Lumber Liquidators May 5 Remand Comments at 7-8.781d at 10.‘ Id.801d.81 See Letter from Lumber Liquidators, “Additional Draft Redetermination Comments Multilayered Wood Flooringfrom the People’s Republic of China,” dated May 12, 2014, (“Lumber Liquidators May 12 Remand Comments”) at3.

22

promoting goal of the AFA statute.82 Finally, Lumber Liquidators argues that CAHP must be

precluded from proposing any new methodologies for recalculating the margins for the separate

rate respondents at this juncture.83

Department Position:

Regarding the argument that the facts in Changzhou Wujin84 are distinct and, therefore,

that the CIT’s holding in that case is inapplicable here, we do not agree. While some of the facts

of Changzhou Wujin are not identical to those before us, there are important similarities between

this redetermination and the facts in Changzhou Wujin.

First, in Changzhou Wujin, the Department found, and the CIT affirmed, that it was

reasonable to infer that a non-cooperating respondent would have an above de minimis margin.

Here, we are making the same inference as to the 110 non-cooperating companies. If the

Department had received complete information from these companies, the Department may have

chosen one of them as a mandatory respondent, and the Department can reasonably infer that

these non-cooperating respondents would have cooperated if they would have obtained a zero or

de minimis rate. Parties argue that the Department cannot know if one of the 110 non-

cooperating companies would have been chosen as a mandatory respondent. We agree, but it is

precisely the failure of the 110 companies to cooperate and to respond to the Department’s

requests for information that results in this predicament. To excuse or ignore the fact would

reflect an incomplete reading of the record. In sum, it is the complete lack of cooperation that

leaves the Department without any information on the record as to the size of these companies or

the size of the Chinese wood flooring manufacturing market in general. Because the information

82 Id.83 Id., at 5.

Changzhou Wujin Fine Chem. Factory Co. v. United States, 968 F. Supp. 2d 1294 (CIT 2014) (“ChangzhouWujin”).

23

was knowingly and willingly withheld, in the absence of this information, the Department is

reasonably inferring that one of these companies may have been chosen.

Second, in Changzhou Wujin, the Department found, and the CIT affirmed, that it was

reasonable not to assign a specific antidumping duty margin when it would never be applied,

either as a cash deposit or for liquidation purposes. In that case, the reason for its non-

application was that the entries in question were already liquidated. Here, the rates for seven of

the eight plaintiffs have been superseded by the publication of the results of the first

administrative review. Thus, any rates resulting from this redetermination would not be used for

liquidation or cash deposit purposes.85 Therefore, like in Changzhou Wujin, the Department

determined that it would be an unnecessary use of administrative and judicial resources to

investigate and calculate a specific antidumping duty margin that will never be applied.

Regarding the argument that the Department’s separate rate calculation methodology

does not reflect the economic reality of the separate rate respondents, as required by the Court,

we agree with CAHP that we employed a reasonable methodology in assigning a rate to the

separate rate respondents, and that this methodology reflects the economic reality of the separate

rate respondents to the extent possible given the limited information available to the Department.

For a company to establish its eligibility for a separate rate, the Department only requires the

separate rate applicant to submit aggregate quantity and value data and a separate rate application

with information to establish that the company is separate from the government. As a result, the

separate rate applicants in this litigation submitted only a small fraction of the amount of

information submitted by the mandatory respondents, and they were not required to respond to

the Department’s initial or supplemental questionnaires or undergo verification of their data.

85 As explained in Issue 2 below, we will individually examine Changzhou Hawd and calculate a rate based on itsown economic reality.

24

Thus, the record of the investigation does not contain necessary and sufficient information to

determine the specific economic reality of each individual separate rate respondent. With these

limitations in mind, we must consider the information on the record to evaluate the economic

reality of the industry and the separate rate respondents to the extent possible.

In this case, with so little information on the record with respect to the separate rate

respondents, we find that the best available information concerning their economic reality is the

economic reality of all companies subject to the investigation and the industry as a whole.

Specifically, in this case, this includes the three mandatory respondents, as well as 110

companies that did not respond to the Department’s Q&V questionnaire. We find that only

considering the experience of the three mandatory respondents as a substitute for the unknown

economic reality of the separate rate respondents, as proposed by the separate rate plaintiffs,

would not be the best available information because it reflects an incomplete reading of the

record and completely excludes from consideration 110 other companies, with which the

separate rate respondents may share a common economic reality.

Regarding the arguments that the Department failed to make a credible link between the

adverse rate assigned to the PRC-wide entity and the cooperating separate rate respondents, and

that the Department’s presumptions about the 110 non-responsive companies neither qualify as

evidence, nor demonstrate that the assigned separate rate bears any relationship to the separate

rate companies’ economic reality, we disagree. As explained above, the Department is looking

at the record as a whole, which includes both cooperating mandatory respondents and the 110

non-cooperating companies. The Department determines that looking only at the mandatory

respondents’ rates provides an incomplete picture. Furthermore, the Department is not making

25

an adverse inference or linking the adverse rate assigned to the PRC-wide entity to the

cooperating separate rate companies.

We also disagree with the assertion that the logical presumption from the mandatory

respondents having de minimis calculated rates is that the industry as a whole would be de

minimis if individually investigated. All companies to which the Department issued Q&V

questionnaires were on notice that their failure to respond to the questionnaire might result in the

application of adverse inferences. Therefore, it is reasonable to assume that implicit in their

decision not to respond was a conclusion that it was in their best interests to accept the adverse

inferences rather than cooperate. It is thus reasonable to infer that at least some of those 110

companies were dumping and would have cooperated with the Department’s investigation if they

could have obtained a low rate.86 Further, as stated above, we find that the best available

information with which to determine the economic reality of the separate rate companies is the

totality of the economic realities of all other companies subject to the investigation, which

includes both cooperative and non-cooperative parties.

Certain separate rate plaintiffs argue that in Bestpak, the Court of Appeals rejected the

calculation of a separate rate margin that included both an AFA rate and a rate derived from a

cooperating de minimis mandatory respondent because it was not representative of the separate

rate candidate’s trading activity. We note that in this redetermination we have not used an AFA

86See Baroque Timber II at 20 (stating that “Commerce may draw reasonable inferences from the failure ofuncooperative respondents to provide evidence of the size, quantity, and value of their sales...”); see also ChangzhouWujin Fine Chemical Factory Co., Ltd. v. United States, Slip Op. 13-127 (Ct. Int’l Trade Oct. 2, 2013) (affirmingthe Department’s finding that the separate rate companies had above de minimis rates without assigning an exactantidumping duty rate); see, e.g., Laminated Woven Sacks From the People’s Republic ofChina: Final Results ofFirst Antidumping Duly Administrative Review, 76 FR 14906, 14910 (March 18, 2011) (citing Rhone Poulenc. Inc.v. United States, 899 F.2d 1185, 1190-91 (Fed. Cir. 1990) (“Rhone Poulenc”) and Ta Chen Stainless Steel Pipe. Inc.v. United States, 24 CIT 841, 848 (Ct. Int’l Trade 2000)); Fresh Garlicfrom the People’s Republic ofChina: FinalResults and Partial Rescission ofthe 14th Antidumping Duly Administrative Review, 75 FR 34976, 34979 (June 21,2010).

26

rate as part of the calculation of the separate rate of “above de minimis;” for example, the AFA

PRC-wide entity rate of 25.62 is not averaged with a de minimis margin of a mandatory

respondent as was the case in Bestpak. Rather, we are concluding that it is reasonable to infer

that some of the 110 companies would have received above de minimis margins had they

cooperated and been individually examined and thus, under the statute’s preferred methodology

for determining the rate for non-examined entities, the separate rate respondents would have

received that above de minimis rate.

Certain separate rate plaintiffs argue that the Department should apply a separate rate

coming from a “neutral inference,” which they deem to be the mid-point weighted-average of the

mandatory respondents’ de minimis margins. However, we disagree that such a finding would,

in fact, have a neutral inference. On the contrary, we find that it would completely ignore the

110 companies that withheld information from the Department by choosing not to participate in

the investigation. We find that the method used in this redetermination is actually neutral, in that

it considers all available information on the record, including the economic realities of both the

participating mandatory respondents, as well as the non-participating companies.

Regarding the arguments that the assigned above-de minimis separate rate is

unreasonable, that the Department should calculate the separate rate using the weighted average

rates of individually investigated companies, and that the methodology used in the draft

redetermination is in direct conflict with the Department’s redeterminations in Albemarle,

27

Amanda 2011, Amanda 2010, and other administrative reviews conducted by the Department,87

we disagree. The cases cited by the separate rate plaintiffs, in which certain separate rate

respondents received a zero or de minimis margin when all mandatory respondents received zero

or de minimis margins, were administrative reviews with, for example, a considerable history of

zero or de minimis margins, whereas the proceeding at issue in this remand redetermination is an

investigation. While we have assigned zero or de minimis rates to separate rate respondents

under limited circumstances in administrative reviews pursuant to section 735(c)(5)(B) of the

Act, where all individually reviewed respondents had calculated margins which were zero or de

minimis, these circumstances are not present in this redetermination. For example, for Brake

Rotorsfrom China, the Department assigned zero margins to the separate rate respondents

because the Department had determined that “the brake rotor firms are fairly homogenous in

terms of economic characteristics” and there was a history of zero or de minimis margins.88

Diamond Sawbiadesfrom China is distinguishable from the instant case because “all prior rates

for that proceeding had been calculated using a methodology the Department abandoned.”89

Therefore, there were no other rates in the proceeding that the Department could apply. In

Shrimpfrom Vietnam (and the Amanda series of cases that resulted), there was a multi-review

87Changzhou Hawd, Jisen Wood, Dexin Wood, Huilong, Yingyi-Nature, and Karly Wood cite Brake Rotors Fromthe People’s Republic ofChina: Final Results of2006-2007 Administrative and New Shipper Reviews and PartialRescission of2006-2007 Administrative Review, 73 FR 32678 (June 10, 2008) and accompanying Issues andDecision Memorandum at Comment 1; Diamond Sawbiades and Parts Thereoffrom the People’s Republic ofChina: Amended Final Results ofAntidumping Duly Administrative Review: 2010-2011, 78 FR 42930 (July 18,2013) and accompanying Decision Memorandum; Honeyfrom Argentina: Final Results ofAntidumping DulyReview, 70 FR 19926 (April 15, 2005); Amanda 2009; Amanda 2010; Amanda 2011; Diamond Sawbiades and PartsThereoffrom the People’s Republic ofChina: Amended Final Results ofReview, 78 FR 42930 (July 18, 2013)(“Diamond Sawbladesfrom China”) and accompanying Decision Memorandum for Amended Final Results ofAntidumping Duty Review: Diamond Sawbiades and Parts Thereof from the People’s Republic of China CoveringPeriod November 1, 2010, through October 31, 2011 (July 11, 2013).885ee Brake Rotorsfrom China and accompanying Issues and Decision Memorandum, at Comment 1.89 Sawblades and Parts Thereoffrom the People’s Republic ofChina: Amended Final Results ofAntidumping Duly Administrative Review: 2010-2011, 78 FR 42930 (July 18, 2013) and accompanying DecisionMemorandum.

28

history of zero and de minimis rates.9° Finally, the plaintiffs’ arguments about Honeyfrom

Argentina are misplaced. In that review, six companies were individually investigated and

received their own calculated zero or de minimis margins.9’ The one company that failed to

participate received an AFA rate.

Certain separate rate plaintiffs argue that, because the three mandatory respondents in this

investigation received zero or de minimis rates, the Department must assign the eight separate

rate respondents antidumping duty margins of zero percent and exclude them from the order.

However, we find that assigning a zero percent rate to the separate rate companies and excluding

them from the order is not appropriate in this case because such a determination would not be

supported by the record information concerning the economic reality of the industry and thus the

separate rate companies. As explained above, we find that the best available information with

which to determine the economic reality of the separate rate companies is the economic reality of

all other companies subject to the investigation, which includes both cooperative and non

cooperative parties. The combination of experience of the mandatory respondents, as well as the

110 non-responsive companies, provides the best available approximation of what we expect the

experience of the separate rate companies to be. For the reasons explained above, this best

available information supports a finding that the separate rate companies’ margin would be

above de minimis had the 110 companies cooperated and our preferred methodology for

assigning rates to non-examined entities been employed. It does not support a finding that their

margin would be identical to the individually examined respondents. Assigning the separate rate

companies a zero percent margin and excluding them from the order would reflect an incomplete

9°See Amanda 2009; Amanda 2010; Amanda 2011.91 See Honeyfrom Argentina: Preliminary Results ofAntidumping Duty Administrative Review, 69 FR 77,195 (Dec.27, 2004), unchanged in Honeyfrom Argentina: Final Results ofAdministrative Review, 70 FR 19,926 (Apr. 15,2005).

29

reading of the record and fail to take into account the experience of the vast majority of

companies subject to the investigation (i.e., the 110 non-responsive companies); thus, it would

not be based on the best available information concerning the economic reality of the separate

rate companies.

In addition, our decision not to assign the separate rate plaintiffs zero or de minimis

margins because we reasonably infer that we would have found dumping during the POT is

further supported by the results of the first administrative review. In the first administrative

review results, we found evidence of continued dumping. In fact, one of the separate rate

plaintiffs, Fine Furniture, has a calculated antidumping duty margin of 5.74 percent.92 Because

we found dumping with the discipline of an order in place, it is reasonable to infer that Fine

Furniture was also dumping during the POT, prior to the imposition of the antidumping duty

order. With respect to the companies that received a zero margin in the first administrative

review, we agree with CAHP that many companies change their pricing practices to eliminate

the price discrimination found in the investigation. Therefore, the fact that certain companies

received zero rates during the first administrative review fails to demonstrate that they must

receive a zero rate for the period of investigation.

Regarding the arguments that the Department must calculate a precise separate rate

margin, rather than only finding the rate to be “above-de minimis,” and that the calculation of the

separate rate respondents’ rate is not moot, we disagree. As explained in the redetermination, the

rate determined in the first administrative review supersedes the cash deposit rate established in

the final determination of the investigation, and the liquidation rates for seven of the separate rate

plaintiffs will be based on the assessment rates determined in the first administrative review,

92 Multilayered Wood Flooring From the People’s Republic ofChina: Final Results ofAntidumping DulyAdministrative Review; 2011-2012, 79 FR 26712 (May 9, 2014).

30

rather than by the any rates resulting from this litigation.93 Given that assigning a precise

separate rate would be resource-intensive, and considering the limits on the Department’s

administrative resources and the court’s judicial resources, we continue to believe that

establishing a precise margin for the separate rate plaintiffs would be a waste of administrative

and judicial resources, which the court has endeavored to avoid where possible and proper.94 We

disagree with a separate rate plaintiff’s assertion that the Department is attempting to avoid

judicial review of its redetermination by assigning a non-specific, above-de minimis rate. Rather,

we have merely found that expending the resources of the Department and separate rate plaintiffs

to calculate a specific rate is not justified when the rate has afready been superseded by the rates

assigned in the first administrative review.

Comments from interested parties have asserted that the separate rate assigned in this

remand redetermination impacts the provisional measures cap.95 We disagree. Section 73 7(a) of

the Act describes the provisional measures cap. In sum, if the “amount of a cash deposit, or the

amount of any bond or other security” determined at the preliminary determination is different

from that determined at the final determination, the sum is disregarded if the security was lower

than the duty or refunded if the security was higher. From May 26, 2011, the date of the

preliminary determination, until October 18, 2011, the date of the final determination, the

See section 751 (a)(2)(C) of the Act.Union Camp Corp. v. United States, 53 F. Supp. 2d 1310, 1325 (Ct. Int’l Trade 1999) (citing Timken Co. v.

United States, 1 F. Supp. 2d 1390, 1393 (Ct. Int’l Trade 1998) (setting aside a remand order where furtherinvestigation would “unnecessarily expend limited administrative resources”)).

See sections 733(d) & 737(a) of the Act (the provisional measures period is the time period between theDepartment’s preliminary determination and notice of the ITC’s final injury determination and this period cannotexceed six months); see also 19 CFR 351.212(d) (during the provisional measures period the amount of duties thatmay be assessed is capped by the rates the Department determined in the preliminary and final determinations); seealso Universal Polybag Co., Ltd. v. United States, 577 F. Supp. 2d 1281 (Ct. Int’l Trade 2008); Thai PineappleCanning Indus. Corp. v. United States, 2000 WL * 174986; Daewoo Electronics Co., Ltd. v. United States, 712 F.Supp. 931 (Ct. Int’l Trade 1989).

31

amount of provisional measures collected, and thus the cap, was set at 6.78 percent.96 After the

publication of the final determination, the provisional measures collected, and thus the cap, was

changed to 3.31 percent, which was later amended to 3.30 percent.97 Therefore, the provisional

measures cap from October 18, 2011, until the expiration of the provisional measures period on

November 22, 2011, was the amount deposited as a result of the final LTFV determination.

For the first part of the provisional measures period, namely from May 26, 2011, until

October 18, 2011, the provisional measures cap has no effect because the rate calculated in the

first administrative review is 5.74 percent which is lower than the cap of 6.78 percent. For the

second part of the period, namely from October 18, 2011, until November 22, 2011, the cap has

an effect because the 3.30 percent rate is lower than the 5.74 percent rate calculated in the first

review. Thus, from October 18, 2011 until November 22, 2011, the Department will not collect

any additional duties beyond the 3.30 percent already collected as a security.

As long as the Department ensures that no greater amount of duty is collected than that

which was collected as a security during the provisional measures period, the Department has

complied with the provisional measures cap provision in the Act. Thus, notwithstanding this

Court’s determination that that certain methodological choices were invalid in the LTFV

investigation, the cap remains unchanged because the cap “merely provides for a use to which

the duty rates computed with the preliminary determination are to be put, without in any way

stating how they should be determined.”98 In this regard, the provisional measures cap is

established by a completed past event (i.e., the amount collected as a security during the

96See Amended Preliminary Determination. The Preliminary Determination set the rate at 10.88 percent but 4.1

?ercent was refunded after the publication of the Amended Preliminary Determination.7See Final Determination; Amended Final Determination and Order, 76 FR 76435 (Dec. 7, 2011). See also

Daewoo Electronics Co., Ltd. v. United States, 712 F. Supp. 931 (Ct. Int’l Trade 1989) (stating that provisionalmeasures are changed as a result of the publication of the final determination).98See Yantal Oriental Juice Co. v. United States, 26 CIT 605, 621 (Ct. Tnt’ 1 Trade 2002).

32

provisional measures period) and is not revisited.99 The plain language of the Act and the

legislative history indicate that duties be capped at the amount “collected” or “posted.”°° This

Court has found that the rate is “based on the deposited amount, not an amount that a final

determination indicates should have been deposited.”°’ Therefore, the 3.30 percent cap remains

in effect and is a “proper interpretation of the controlling statute and regulation.”°2

Certain separate rate companies argue that the Department should also change the

provisional measures cap established in the preliminary determination (i.e., this cap was in effect

from May 26, 2011, until October 18, 2011) because the preliminary determination was invalid

as it contained some of the methodological flaws this Court found in the final determination. As

an initial matter, this Court’s decision in Baroque Timber only applies to the final determination

and this Court has made no finding with respect to the preliminary determination. Indeed, the

Court’s jurisdictional statute does not include a preliminary affirmative determination from a less

than fair value investigation as a determination reviewable under 28 USC 1581(c) which is the

jurisdiction the Court exercises in this 03 In any event, for the same reasons articulated

above with the respect to the cap established in the final determination, the Department also finds

the preliminary determination provisional measures cap does not change. The cap is established

by the amount deposited during the provisional measures period and the amount of the cap is not

revisited if the Department makes methodological changes as a result of a redetermination.

Universal Polybag Co., Ltd. v. United States, 577 F. Supp. 2d 1284, 1302 (Ct. Int’l Trade 2008).‘°° Id.; see also Trade Agreements Act of 1979, Pub.L. No. 96-39, 101, 93 Stat. 144, 173-74 (1979); Statement ofAdministrative Action accompanying the Trade Agreements Act of 1979, H.R. Doc. No. 96-152, Pt. II, at 427-28(1979), reprinted in 1979 U.S.C.C.A.N. 665, 695; S.Rep. No. 96-249, at 77, reprinted in 1979 U.S.C.C.A.N. 381,463; H.R.Rep. No. 96-3 17, at 70.°‘ Id. at 1303.IO2j

103 28 USC 1581(c) provides jurisdiction for the CIT to review AD/CVD determinations listed in 19 USC 1516awhich, in turn, does not list the Department’s preliminary AD/CVD determinations among the reviewabledeterminations.

33

Regarding the argument that it is unreasonable for the Department to consider rates

assigned in the final results of the first review to justify the rate assigned in the second remand,

we agree that the investigation and the first administrative review are separate proceedings with

separate facts. However, it is important to note that a first administrative review has a particular

relationship with the entries suspended during an investigation because the first administrative

review period covers these entries. That is, the first administrative review period is 18 months

and starts at the publication of the preliminary determination in the investigation.’04 Particularly

because the first administrative review period covers the entries suspended during the

investigation and because certain companies were found to be dumping in the first administrative

review, even with the discipline of the order in place, we find that it is reasonable to infer that

some companies would have been found to be dumping in the investigation as well, before the

order was put in place.

Fine Furniture argues that the Department’s exclusion of Layo Wood from the order,

despite finding an above-de minimis margin in the first administrative review, demonstrates the

lack of a relationship between proceedings. The Department disagrees. The Department did not

make any finding with respect to Layo Wood in the final results of the first administrative

review.’05 Layo Wood is excluded from the order because, after individual examination, it

received a zero gjfl•O6 Thus, for Layo Wood it is irrelevant what its first review behavior is

because it is not subject to the order as a result of this litigation. On the other hand, the first

administrative review can be illuminating for respondents properly subject to the order. In any

event, as discussed above, we note the particular relationship between the first administrative

104 19 CFR 351.213(e)(1)(ii). The period of review of the first administrative review was May 26, 2011 throughNovember 30, 2012. See Final Results ofFirst Administrative Review.105 See Final Results ofFirst Administrative Review.106 See First Remand Redetermination.

34

review period and the entries to which this redetermination applies. We find that this

relationship establishes a sufficient link between this redetermination and the first administrative

review, which supports our inference that assigning the separate companies a zero percent

margin would not be appropriate in this redetermination.

2. Individual Investigation of Changzhou Hawd

With respect to the Department’s decision to issue it a full questionnaire, Changzhou

Hawd argues that the Department does not have authority to fully reinvestigate any separate rate

respondent under the CIT’s remand instructions, and that selection of one company for full

investigation is not reasonable. Changzhou Hawd notes that the Department has the voluntary

information of Fine Furniture available for the fourth sample in addition to the mandatory

respondents. Also, Changzhou Hawd contends that there must be a reasonable method that could

be devised to examine and test the separate rate respondents’ data during the period without the

need for significant additional investigation or preparation, especially given that the Department

stated in this investigation that it did not have the resources to fully investigate additional

07

Lumber Liquidators argues that the Department’s proposal to conduct a full investigation

of Changzhou Hawd is arbitrary and capricious because the Department now states it can find

the resources to conduct a “full investigation” of a company that it declined to pick as a

mandatory respondent during the original investigation.’08 Lumber Liquidators contends the

Department’s decision to now review Changzhou Hawd as a mandatory respondent appears to be

an attempt to cherry-pick a respondent since the Department refused to accept voluntary

107 See Letter from Changzhou Hawd, Jisen Wood, Dexin Wood, Huilong, Yingyi-Nature and Karly Wood,“Multilayered Wood Flooring from the People’s Republic of China: Response to Department’s Request forComments,” dated May 12, 2014, at 4.108 Lumber Liquidators May 5 Remand Comments at 5.

35

respondents in the original investigation, citing lack of resources.109 Additionally, Lumber

Liquidators states that the Department’s decision to review a respondent over three years after

the end of the AD investigation is inconsistent with strict statutory and regulatory deadlines set

forth in the AD statute setting forth the time period for the Department to conduct AD

Moreover, it argues the proposed full investigation of Changzhou Hawd four

years after the fact would be contrary to statute when its Q&V data did not initially place it in the

pool of exporters and producers accounting for the largest volume of subject merchandise.111


We disagree with Changzhou Hawd and Lumber Liquidators that we cannot fully

investigation Changzhou Hawd. As stated in the redetermination, Changzhou Hawd is not part

of the first administrative review of this order because it certified that it had no shipments during

the period of the first administrative review. As a result, its cash deposit rate will not be replaced

by rates determined in the first administrative review of this order and the Department must

determine a rate in this redetermination to serve as Changzhou Hawd’s cash deposit rate for

future entries. Because there is limited data on the record, as stated above in the redetermination,

we are unable to calculate a rate for Changzhou Hawd based on its own economic reality.

Therefore, in order to calculate a rate for Changzhou Hawd based on its own economic reality,

we are individually examining Changzhou Hawd by issuing it a full questionnaire, analyzing the

data and issuing supplemental questionnaires as needed, and then verifying the data, as required

by the statute.

109j at5-6.110j at6.‘Id. at7.

36

Regarding whether the Department has authority within the CIT’s remand instructions to

issue a questionnaire to Changzhou Hawd, there is no language in the CIT’s order precluding the

Department from doing so. Moreover, the Department proceeded in the same way in a case

involving similar circumstances. In Yangzhou Bestpak Gfts & Crafts, the Department chose to

review respondent Bestpak individually when its simple average of a zero and an AFA rate was

remanded by the CAFC.”2

Regarding Lumber Liquidators argument that the Department’s decision to review a

respondent over three years after the end of the AD investigation is inconsistent with strict

statutory and regulatory deadlines set forth in the AD statute, we disagree. The original statutory

and regulatory deadlines of an investigation do not apply to remand redeterminations. Instead, as

is the case in any redetermination resulting from a remand, new deadlines will be set for this

remand redetermination. Finally, it is confusing for Changzhou Hawd to, on the one hand, argue

that the Department must account for its economic reality while also arguing that the Department

cannot investigate that economic reality. The most direct way to account for Changzhou Hawd’s

economic reality is to individually investigate the company’s manufacturing process, sales, and

overall business structure, which is what the Department intends to do.

3. Individual Investigation of Fine Furniture

Fine Furniture argues that the Department’s decision to issue an antidumping

questionnaire to Changzhou Hawd, but not individually examine Fine Furniture’s questionnaire

responses, is an inconsistent application of antidumping duty law. Fine Furniture contends that

the same type of information sought from Changzhou Hawd is already on the record of the

investigation with respect to Fine Furniture, but that the Department has refused to analyze it.

‘12See Yangzhou Bestpak GJis & Crafts Co. v. United States, Court No. 10-00295 (Ct. Int’l Trade 2013).

37

Fine Furniture argues that it has demonstrated its own economic reality during the P01, which it

claims is similar to that of the mandatory respondents. Fine Furniture contends that the disparate

treatment of Fine Furniture, compared to Changzhou Hawd, is a deliberate attempt to keep Fine

Furniture in the antidumping duty order. Further, Fine Furniture states that because it availed

itself of remedies at the administrative level by submitting questionnaire responses and surrogate

value information, the Department’s deliberate ignoring of Fine Furniture’s information and

separate rate calculation is unsustainable.”3

Fine Furniture contends that the Department is incorrect in its conclusion that assigning a

separate rate to Fine Furniture is unnecessary. First, Fine Furniture claims that because it already

voluntarily submitted questionnaire responses and its own margin calculation, a company-

specific margin calculation would require no additional Department resources. Second, Fine

Furniture argues that the calculation of its own separate rate is critical because such a rate, if

properly calculated, would remove Fine Furniture from being subject to the antidumping duty

order, thus rendering the results of the first administrative review meaningless. Fine Furniture

states that a similar finding was made for Layo Wood, and that Fine Furniture’s result should be

the same as Layo Wood’s.

Additionally, Fine Furniture argues that the record of the investigation contains evidence

that Fine Furniture is similar to the mandatory respondents, in terms of sales volume and average

unit values, and dissimilar to the uncooperative Q&V respondents. Fine Furniture notes that

while little is known about the 110 companies that failed to respond to the Department’s Q&V

questionnaire, the Department does know that these uncooperative companies all failed to

participate to the best of their ability. In contrast, Fine Furniture differs from these companies

113 Fine Furniture cites Changzhou Wujin Fine Chem. Factory Co. v. United States, 968 F. Supp. 2d 1294 (CIT2014).

38

because it did participate to the best of its ability by submitting full questionnaire responses and

surrogate value information to the Department, which makes it akin to the cooperative

mandatory respondents. Fine Furniture argues that calculating a margin with its own data and

the surrogate values used in the first remand redetermination would result in a de minimis

dumping margin, and that this similarity to the mandatory respondents should be taken into

account when assessing the commercial reality of the separate rate.

Finally, Fine Furniture argues that because its own calculated rate would be de minimis,

the only reasonable approach is to exclude Fine Furniture from the order. It states that the

Department could do so by: (1) assigning Fine Furniture an average of the mandatory

respondents’ rates; (2) relying on a comparison of Fine Furniture’s AUVs to those of the

mandatory respondents; or (3) relying on Fine Furniture’s own calculated de minimis margin.

Fine Furniture claims that this would be consistent with the Department’s past practice of

assigning a different rate to certain separate rate respondents when the separate rate can be based

on the companies’ own data.”4

CAHP argues that Fine Furniture’s request to be treated differently because it submitted a

voluntary questionnaire response in the investigation should be rejected by the Department for

the same reasons as stated in the Final Determination.


We disagree with Fine Furniture that the Department should analyze its questionnaire

responses submitted during the investigation for this remand redetermination. In contrast to

Changzhou Hawd, which the Department has selected for individual examination in this remand

“4 Fine Furniture cites Certain Frozen Warmwater Shrimp From the Socialist Republic of Vietnam: Final Resultsand Final Partial Rescission ofAntidumping Duly Administrative Review, 74 FR 47191, 47195 (September 15,2009).

39

redetermination, Fine Furniture received an updated cash deposit and liquidation rate from the

first administrative review results. Thus, for the reasons stated above, investigating Fine

Furniture would be a waste of administrative and judicial resources. Despite Fine Furniture’s

argument that a company-specific margin calculation would require no additional Department

resources, in reality, it would take significant Department resources to fully analyze Fine

Furniture’s questionnaire responses, issue any necessary supplemental questionnaires, and

complete a verification of Fine Furniture’s sales and FOP data, in order to calculate a company-

specific margin.

Regarding Fine Furniture’s claim that it is similar to the mandatory respondents and

therefore would inevitably receive a zero margin, we disagree. Because we have not analyzed

Fine Furniture’s full questionnaire response, issued supplemental questionnaires, or verified its

data, we are unable to confirm the accuracy of Fine Furniture’s submitted data, including its

average unit values and especially its own calculated de minimis margin. Therefore, it is

impossible for the Department to determine whether Fine Furniture is similar to the mandatory

respondents, and it would be unreasonable for the Department to assign Fine Furniture a zero

margin and exclude it from the order based on data which have not been analyzed or verified by

the Department.

4. Time Allowed to Comment on the Draft Remand Redetermination


argue that the parties were not granted sufficient time to comment on the Department’s draft

second remand redetermination. Specifically, the Department only granted an extension from

12:00 noon on Friday, May 2, 2014, to 9:00 am Monday, May 5, 2014, compared to the

interested parties’ request for a four business day extension.

40

Also, Lumber Liquidators opposed the Department’s request for additional comments

and 29-day extension of this redetermination because they are unwarranted and it only consented

to a 22-day alternative extension if the Department agreed not to allow further comments by

parties on the draft redetermination results.115 Lumber Liquidators contends that the

Department’s request for yet more comments appears illusory considering the fact that parties

have already submitted voluminous commentaries to the Department and the CIT on the

calculation of the separate rate over the course of this appeal.”6


Due to the tight deadlines established in this remand by the CIT, we were initially unable

to grant the parties’ full extension request and could grant parties only until 9:00 am Monday,

May 5, 2014, for additional comments, as the remand was due to the CIT on Thursday, May 8,

2014. However, the CIT granted the Department an extension until May 30, 2014 to complete

the final remand redetermination. When the CIT provided additional time to the Department for

the final remand (i.e., May 30, 2014), we also granted additional time for interested parties to file

any additional comments until Monday, May 12, 2014. Changzhou Hawd, Jisen Wood, Dexin

Wood, Huilong, Yingyi-Nature, and Karly Wood and Lumber Liquidators filed additional

comments on May 12, 2014, as did other interested parties. Therefore, with the CIT’ s extension,

we were able to grant additional time to the interested parties to file additional comments.

IV. FINAL RESULTS OF REDETERMINATION

Following the CIT’s directive, the Department reconsidered the margin applied to the

separate rate respondents, and assigned Fine Furniture; Dunhua City Jisen Wood Industry Co.,

Ltd.; Dunhua City Dexin Wood Industry Co., Ltd.; Dalian Huilong Wooden Products Co.;

See Lumber Liquidators May 12 Remand Comments at 2.“61d

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Kunshan Yingyi-Nature Wood Industry Co., Ltd.; Armstrong; and Karly Wood Product Limited

above-de minimis margins for the reasons stated above. Also, for Changzhou Hawd, we issued

our full questionnaire and intend to individually examine this company so that it will receive its

own calculated cash deposit rate. The Department intends to issue a draft and final

redetermination for Changzhou Hawd once the necessary information is collected and analyzed.

Paul PiquadoAssistant Secretary

for Enforcement and Compliance

Date

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